Improving ESA consultation

In early May, I wrote about the Obama administration’s decision to take up Congress’s invitation to recall the last-minute Bush revisions to the ESA’s section 7 consultation rules. At the time, the new administration also requested public comment on “ways to improve the section 7 regulations while retaining the purposes and policies of the ESA.” Today is the deadline for comment submission. Together with Center for Progressive Reform scholars Mary Jane Angelo and Dan Rohlf and policy analyst James Goodwin, I’ve submitted these comments. James blogs about our suggestions here.

There is good reason to hope that, at a minimum, the administration will reconsider the definition of adverse modification of critical habitat in light of the two court of appeals decisions holding the current definition invalid, and evaluate how to make better use of section 7(a)(1), which requires all federal agencies to utilize their authorities in furtherance of the purposes of the ESA, but which has been mostly ignored. In January Michael Bean, then Director of EDF’s Wildlife Program, but now a top advisor to Assistant Interior Secretary Tom Strickland, co-authored a paper in the Environmental Law Institute’s Environmental Law Reporter (39 Envtl. L. Rep. News & Analysis 10006) calling for those changes, among others, to ESA implementation.